A common question that has often perplexed lawyers and jurists alike is how to resolve the conflict of jurisdiction that has arisen and which is more than likely to arise in the future between the Competition Commission of India and various other subject specific Tribunals in India. The origin of the issue is very simple to analyse: you cannot under any circumstances have exclusively specific subject jurisdiction for Tribunals. It has been tried around the world and has always failed.  What is more difficult is its resolution.

Abroad, regulators rarely encounter this problem, for the simple reason that they don’t allow themselves to !! They prefer not to raise their hackles at every other regulator who may occasionally (and usually accidentally) let his dog run into their backyard. Coordination is the key to an effective implementation of laws and foreign Regulators generally seem to display a remarkably high level of maturity between themselves to resolve disputes related to conflict of jurisdiction. ( A classic example can be that of the FTC and FCC of United States).

Sadly, immaturity and inflated ego’s are two very prominent features of the Indian Bars and the executive, and so consequently, it extends to all Regulators, whether independent of governmental regulation or not, so it is doubtful considering the present state of affairs, whether they can arise a non adjudicatory resolution to the dispute.

The reason this post part has been titled as Part – 1 is because I intend to in the long run derive the correct legal jurisdiction solution between the CCI/COMPAT and all other tribunals and regulators  over time as i get time for a detailed analysis and research. in this post, I shall focus only on the inherent conflict of jurisdiction between the TRAI/TDSAT  and the CCI/COMPAT.

The issue was raised before me first during an internal moot problem prepared by a senior alumni of my Law School. I confess, I failed to find and answer to the question (specifically, what gave the TDSAT the right to pass a notice on the COMPAT, and whether they have and overriding jurisdiction over the COMPAT ??), and at that time all I could do was to pathetically avoid the question through dodging tactics and beating around the bush. (Surprisingly, the judges were impressed with it, I personally was disgusted with myself with what i considered as inadequate research). I later met the drafter of the problem and asked him for an answer to the question. He claimed that the TDSAT had a higher jurisdiction, and though I understood and accepted his logic, I admit, I was not convinced. I can now proudly claim that I have finally found the answer to the question (albeit, maybe a bit too late) and I can say with full conviction that the COMPAT has a higher authority. In fact, one will realise that there can arise no opportunity for a conflict of jurisdiction.

Section 14 of the TRAI Act, 1997 states in its proviso as follows:

“….Provided that nothing in this clause shall apply in respect of matters relating to -(A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to jurisdiction of the Monopolies and Restrictive Trade Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969….”

At the same time, Section 8 of the general clauses act also states:

“Where this Act, or any (Central Act) or regulation made after the commencement of this Act, repeals and re-enacts, with or without notification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.”

Reading both these provisions together, one can derive a clear interpretation that since the Competition Act, 2002 repeals the Monopolies and Restrictive Trade Practices Act, 1969, a direct interpretation that arises is that the TDSAT is exempted from handling matters that the CCI and COMPAT would be competent to handle under their jurisdictions (viz. anti – competitive agreements, abuses of dominant position, combinations). accordingly, it may, under section 21 of the Competition Act, make references to the CCI regarding any matter related to telecommunications or broadcasting involving anti – trust issues.

Personally, I feel that though such clauses do clarify such vexatious questions inflicted upon various regulatory authorities and tribunals, what in fact statutes should also do is encourage harmony and coordination between the these regulatory authorities. I am happy to note that the competition Act does try to do so through section 62 which clearly states that the application of laws is not barred and that the provisions of the act are in addition to, and not in derogation of the provisions of any other law for the time being in force.